by William A. Schabas. Cambridge: Cambridge University Press, 2006. 766pp. Hardback. £90.00/$150.00 ISBN: 9780521846578. Paperback. £46.00/$80.00. ISBN: 9780521609081. e-Book format. $120.00. ISBN: 9780511239366
Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.
William Schabas is Professor of Human Rights Law at the National University of Ireland, Director of the Irish Centre for Human Rights, and a frequent presenter at international law conferences. His previous works include books on genocide, the abolition of the death penalty in international law, an introduction to the international criminal court, as well as an avalanche of articles on international criminal and humanitarian law. His current book is a compendium of background facts and a review of substantive international criminal law, evidence and procedures of the tribunals for the former Yugoslavia, Rwanda, and Sierra Leone. However, it is not a book that attempts any in depth analysis of the successes, shortcomings or failures of these tribunals.
The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by a UN Security Council resolution on February 22, 1993. The International Criminal Tribunal for Rwanda (ICTR) was created by a UN Security Council Resolution of November 8, 1994. Unlike the first two, the Special Court for Sierra Leone was created at the instigation of the government of Sierra Leone through a bi-lateral treaty of January 16, 2002, between that government and the United Nations. These tribunals are part of a movement to create prosecutable crimes under international law, which includes the entry into force of the International Criminal Court (ICC) on July 1, 2002, as a consummation of the Rome Statute for an International Criminal Court that was adopted by 120 nations gathered in Rome in 1998.
The direct precursor to these tribunals was the International Military Tribunal at Nuremberg, chartered in August 1945, which rendered judgments in 1946 convicting nineteen “major war criminals” of crimes against peace, war crimes, and crimes against humanity. However, as Schabas and others note, the Nuremberg trials were the product of the Allied powers, with the enduring aspect of victors’ justice. Thus, the ICTY was the first independent international criminal tribunal.
Creation of the ICTY
Schabas reports that in July, 1992, Human Rights Watch called “for the constitution at the highest level of an international tribunal charged with investigating, pursuing, judging and punishing without distinction those responsible for war crimes on the territory of the ex-Yugoslavia (p.14). In October 1992 the UN Security Council authorized the UN Secretary General to establish a Commission of Experts to analyze the information about war crimes that had been collected. The Commission was chaired by M. Cherif [*386] Bassiouni, a distinguished expert in international criminal law who received the 2007 Hague Prize for distinguished contributions to the field of international law. The Commission called for the creation of an international tribunal.
Given the chequered history of the United States government regarding the creation of a permanent international criminal court (ICC), it is interesting that “enthusiastic – and ultimately decisive – support” for the creation of a tribunal from Yugoslavia came from the United States (p.18). This came most notably from US Secretary of State Warren Christopher in 1993. Support also came from the International Committee for the Red Cross, Amnesty International and the Lawyers Committee for Human Rights.
Schabas reports that one of the early signal events for the ICTY came in October 1995, before its first trial had begun. The Appeals Chamber of the ICTY issued an important ruling declaring that war crimes could be committed during civil wars and that crimes against humanity could be committed during peacetime. Both conclusions were crucial for the efficacy of the ICTY (p.23).
The first trial before the ICTY, which began in May 1996, was that of Duško Tadić, a Bosnian Serb officer who was arrested in 1994 and convicted in 1997 of 13 counts of crimes against humanity and war crimes and sentenced to 20 years in prison. Tadić was not a top figure among the Bosnian Serbs. The first count of his indictment was for crimes against humanity, including a rape, in Omarska prison in 1992.
Schabas reports that by 2000 the work of the ICTY was “thriving,” with a budget over $100 million per annum. In 2002, the ICTY announced a “completion strategy” that proposed the end of its work by 2010.
Clearly the most prominent figure to be tried before the ICTY was Slobodan Milošević, who was arrested in April 2001, brought to trial in February 2002, led his own defense beginning early in 2004, and died in prison on March 11, 2006, while proceedings were still pending. The length of his trial, and the opportunity it afforded him to use the trial as a forum for his disdain and ridicule, presumably will be assessed in due time.
The leading Bosnian Serb figures, Radovan Karadžić (head of the so-called Republika Srbska) and Ratko Mladić (commander of the Bosnian Serb army who led the onslaught against Srebrenica in 1995) are still at large and supported by their partisans. They went into deep hiding when Slobodan Milošević was arrested in 2001. On October 11, 2007, the government of Serbia offered a reward of 1 million Euros for information leading to their arrest.
Creation of the ICTR
The ICTR was created to hold accountable those responsible for the genocidal conflict between the majority Hutu and minority Tutsi people of Rwanda. A UN Security Council resolution of May 17, 1994, used language from the Genocide Convention without specifically charging genocide. The resolution called on the UN Secretary General to investigate and report to the Council on the allegation that serious breaches of international humanitarian law had occurred. In July 1994, the Security Council voted to create a commission of experts, much like that created for the former Yugoslavia, while in June 1994 US  Secretary of State Warren Christopher expressed support for a war crimes tribunal for Rwanda. In September, the government of Rwanda formally asked the UN to create a tribunal, and that was accomplished in November 1994. Schabas notes, however, an important distinction between the ICTY – which prosecuted crimes committed during an “international” conflict between the territories and the various identities of the former Yugoslavia – and the Rwandan genocide that occurred within one country that remained intact. Abstract support for a Rwandan tribunal existed, but the devil was in the details, so that Rwanda cast the sole dissenting against the eventual UN Resolution (p.29).
The ICTR courtroom was located in Arusha, Tanzania. The first judges for the ICTR were elected early in 1995, and the first indictments were issued late in that year. It accused eight persons of genocide – the mass killing of several thousand in western Rwanda. By March 1996, the acting military ruler of Rwanda during the genocide was taken into custody, and Schabas notes the relative ease of arresting accused Rwanda perpetrators, compared to the ICTY.
The first trial before the ICTR included a plea of guilty entered by J. Kambanda, a former Prime Minister, in September 1998. The tribunal’s trial of the Akayesu case involved the first interpretation by an international tribunal of the crime of genocide as set out in the Genocide Convention of 1948.
As of January 2007 the ICTR had entered 27 judgments against 33 accused. The completion strategy for the ICTR aims at the conclusion of trials by the end of 2008.
Creation of the Special Court for Sierra Leone
As noted above, the Special Court for Sierra Leone was established by Sierra Leone and the United Nations in January 2002. It was charged with trying those responsible for serious breaches of international humanitarian law, or Sierra Leonean law, since November 30, 1996.
The conflict in Sierra Leone was between at least three warring factions. Eleven persons, drawn from all three factions, have been charged with war crimes, crimes against humanity and other serious breaches of international humanitarian law. These charges include “murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, and attacks on United Nations peacekeepers and humanitarian workers.”
Early in October 2007 the Public Affairs Office of the Special Court announced the sentences of Moinina Fofana and Allieu Kondewa, two former leaders of Sierra Leone’s Civil Defence Forces (CDF). They had been convicted in August 2007 of “murder, cruel treatment, pillage, and for conscripting or enlisting children under the age of 15 years into the armed forces of militias.” The two leaders received sentences of 6 and 8 years, respectively. The sentences would have been longer but for the mitigation contributed by the efforts of the CDF to restore power to Sierra Leone’s elected government. The Trial Chamber noted that the CDF “contributed immensely to re-establishing the rule of law in this Country where criminality, anarchy and lawlessness . . . had become the order of the day.” (Press Release, 9 October 2007 at www.sc-sl.org ). [*838]
Overview of the three creations
It can readily be seen from the recitation of quite recent outcomes that any conclusive overview of the work of these ad hoc tribunals must suffer from the fact that their work is still in progress. No doubt that makes analysis of their contributions to the rule of law problematic, so Schabas should not be faulted for the lack of such analysis. As a compendium providing the background, laws, and procedures of the tribunals he has done a very nice job. There are a number of especially interesting points that ought to be noted.
A few notable points
The treatment of general principles of law in Chapter 9 includes the crucial topics of superior responsibility (p.324) and superior orders (p.329). Superior responsibility means that those higher in the chain of command may be held responsible for crimes if she or he actually knew, or had reason to know, that a subordinate was about to commit a criminal act, or had already done so, and the superior failed to take necessary and reasonable measures to prevent such act, or to punish the perpetrator(s).
Superior orders will not to be treated by these tribunals as basis for relieving a lower-level accused of criminal responsibility, but may be considered in mitigation, if a tribunal determines that justice requires it.
The extent of crimes involving sexual violence is covered in Chapter 7 (p.210ff). In addition to the crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, and forced sterilization are covered. The evolution of these as crimes against humanity has been moved forward by international non-governmental organizations, and owes much to the presence of women lawyers in the work of public international law. Equally interesting is the section of evidence in cases of sexual assault that begins at p. 496. The general rule is that the testimony of the victim of a sexual crime need not be corroborated before these international tribunals. Also, both the ICTY and the ICTR rules provide that consent shall not be allowed as a defense “if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention, or psychological oppression, or reasonably believes that if the victim did not submit, another might be so subjected, threatened or put in fear.”
The treatment of torture or cruel, inhuman, and degrading treatment in Chapter 8 (p.250ff) will prove interesting because of our own issues with torture during the administration of George W. Bush. It warrants a careful reading.
Chapter 12 covers the rules of evidence. Hearsay evidence is not barred before these tribunals, because their trials are to be conducted before experienced judges who are presumed competent to judge the weight of hearsay evidence, rather than enforcing a rule of exclusion.
Chapter 13 on the rights of the accused includes an especially interesting section on equality of arms (p.513ff), which under the ICTY has come to mean that the prosecution and defense must be equal before the Trial Chamber so it must grant “every practicable facility it is capable of granting” to assure such equality. Anyone familiar with urban criminal courts in the United States knows how infrequently that standard is applied there. It is also notable that the principle of public trials before these [*839] tribunals is subject to the provision that hearings may be closed where “extraordinary events attach to a witness’s own safety, or that of his or her family.” Concerning rights of the accused, the brief section on habeas corpus (p.539) reminds us that the UN Human Rights Committee has described the writ of habeas corpus as a non-derogable right under international human rights laws. We shall see during the present term of the Supreme Court of the United States whether that obtains as well under the US Constitution.
Chapter 15 provides an excellent summary of the structure and administration of the tribunals. The ICTY trials have been in The Hague, the ICTR trials have been in Arusha, and the SCSL trials have been in Freetown, the capital of Sierra Leone. In one ICTR case, a defense motion, not opposed by the prosecutor, led to a site visit to Kibuye Prefecture in Rwanda. Site visits were also authorized by the ICTY to various locations, including Srebrenica.
As you might imagine, the points noted above are only a few samples from a very long book. If you do not know much about ad hoc international criminal tribunals, but want to learn more, or if you want a single-volume reference book on such tribunals, this is the book for you.
Homepage of the International Criminal Court available at: www.icc-cpi.int .
Homepage of The Special Court for Sierra Leone available at: www.sc-sl.org .
Homepage of the United Nations International Criminal Tribunal for Rwanda available at: www.ictr.org .
Homepage of the United Nations International Criminal Tribunal for the Former Yugoslavia available at: www.un.org/icty .
Schabas, William A. 2004. INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT. 2nd ed. Cambridge: Cambridge University Press.
Schabas, William A. 2003. THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW. Cambridge: Cambridge University Press
Schabas, William A. 2000. GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES. 3rd ed. Cambridge: Cambridge University Press.
© Copyright 2007 by the author, Donald W. Jackson.